ARL Public Policy Briefing
April 2024
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Katherine Klosek, Director, Information Policy and Federal Relations
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This month, ARL saw our influence in the US Department of Justice’s final rule on Title II of the Americans with Disabilities Act (ADA). As the Digital Millennium Copyright Act (DMCA) Section 1201 rulemaking continues, the Library Copyright Alliance (LCA), Authors Alliance, and Software Preservation Network (SPN) made the case for off-premises access to research data in US Copyright Office hearings. ARL continues to advocate against the Pro Codes Act, which would extend copyright protection to codes developed by standards development organizations and incorporated into local, state, and federal laws; see our coverage in Techdirt. In a letter to the Speaker of the US House of Representatives, the US solicitor general explained that the government will not seek appeal in Valancourt Books v. Garland. Congress introduced a discussion draft of a new federal privacy bill that includes specific treatment for data in library collections, but the bill’s future is uncertain. Finally, ARL and EDUCAUSE welcomed the US Federal Communications Commission (FCC) vote to approve net neutrality protections.
The Canadian Association of Research Libraries (CARL) held its 2024 Spring General Meeting in Montréal last week. Susan Haigh, executive director of CARL, and Brett Waytuck, CARL’s president, refuted misleading claims about education and copyright in a letter to the editor of The Hill Times. And Canada’s 2024 federal budget reflects higher education and research library priorities that CARL advocated for during the 2024 pre-budget consultation.
The monthly Public Policy Briefing highlights developments in ARL’s public policy priorities, issues that are relevant to the research library community in the United States and Canada, and details on advocacy conducted by ARL and CARL. Please encourage your colleagues to sign up for the Public Policy Briefing.
If you have questions or suggestions, please email me at kklosek@arl.org.
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Copyright and Fair Use/Fair Dealing
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Open Internet and Online Privacy
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ARL Influences US Department of Justice (DOJ) Disability Regulations
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The US Department of Justice (DOJ) issued this month its final rule for the regulations implementing Title II of the Americans with Disabilities Act (ADA), which applies to state and local government services.
In its August 2023 notice of proposed rulemaking (NPRM), the DOJ proposed adopting the Web Content Accessibility Guidelines (WCAG) 2.1 as the technical standard for web content and mobile app accessibility under Title II of the ADA, with an exception for password-protected course content offered by a public postsecondary institution. In our comments on the proposed rule, ARL pointed out that most licensed digital higher education content is behind a password wall, and that it’s unclear why there should be an exception from compliance with web accessibility standards for digital content solely because it is behind a password. The DOJ acknowledged that the “overwhelming majority of comments on this topic expressed opposition to the course content exceptions as proposed in the NPRM.” In its final rule, the department eliminated the course content exceptions in recognition that “it is critical for students with disabilities to have access to course content for the courses in which they are enrolled.”
The DOJ was also favorable to ARL’s comments on how critical it is for publishers to provide accessible content from the start, rather than leave it to libraries to remediate. We explained that libraries operate under the assumption that a student or researcher might need accessible content at any time, and we described how libraries work with the scholarly publishing industry to move toward adoption of born-accessible standards through institutional and consortial negotiation strategies. The department concluded that its final rule will incentivize vendors to produce accessible content. The final rule references ARL’s comments accordingly:
Commenters noted that digital content available through libraries is often hosted, controlled, or provided by third-party vendors, and libraries purchase subscriptions or licenses to use the material. Commenters stated that it is costly and burdensome for public libraries to remediate inaccessible third-party vendor content. However, one commenter highlighted a number of examples in which libraries at public educational institutions successfully negotiated licensing agreements with third-party vendors that included requirements related to accessibility.
We hope that libraries can leverage this rule to continue to negotiate with vendors for timely accessible content. ARL will continue to advocate for born-accessible publishing through comments to the US federal government.
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Canada’s 2024 Federal Budget Reflects CARL’s Priorities for Higher Education and Research Libraries
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During CARL’s Policy and Advocacy Committee Meeting, which took place during CARL’s Spring General Meeting last week, CARL provided an overview of its advocacy during the 2024 budget consultation to the government of Canada, as compared to the outcomes in Canada’s 2024 federal budget.
During pre-budget consultations, CARL recommended that the federal government invest in open educational resources (OERs) and the advancement of official languages, administered by Canadian Heritage; additional funding for Library and Archives Canada; continued funding for the Canada Book Fund to assist the Canadian publishing industry to create born-accessible materials for people with print disabilities; significant investments in AI; and an increase in the Digital Research Alliance of Canada funding allocation.
The 2024 budget included several CARL priorities, such as $10 million over three years for the Canada Book Fund; $4 million for an action plan on official languages; a $2.4 billion investment in the country’s AI sector; expanded internet access; and funding for student scholarships and research grants.
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Copyright and Fair Use/Fair Dealing
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Library Copyright Alliance (LCA) and Partners Make Case for Off-Premises Access to Research Data in US Copyright Office Hearings
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Representatives of Authors Alliance, the Library Copyright Alliance (LCA), and the Software Preservation Network (SPN) participated in hearings this month about why the US Copyright Office should expand existing exemptions from the prohibition on circumvention of technological protection measures that control access to copyrighted works. The proponents answered questions and gave examples in support of petitions to allow researchers offsite access to preserved software and video games, and to share corpora prepared for text and data mining (TDM) research. The hearings are a continuation of the ninth triennial rulemaking process under Section 1201 of the Digital Millennium Copyright Act.
During the TDM hearing, Copyright Office officials asked proponents of the expansion petition about the logistics and security concerns related to sharing corpora, as well as questions related to the existing exemption. The proponents emphasized that if the current TDM exemption is expanded, researchers and the institutions of higher education they are affiliated with will continue to follow current standards for the safe and secure transmission of sensitive data and record keeping as part of the scholarly research process. Proponents of the expansion also explained that machine learning is core to TDM, and cautioned the office not to exclude generative AI uses from the expansion, as there may be analytical applications for generative AI. One researcher noted that he has been unable to apply the existing TDM exemption to e-books due to contractual restrictions on e-books, explaining that even if his institution purchased a book from Amazon, its terms of service explicitly prohibit breaking digital rights management technology.
In separate hearings on remote access to preserved copies of video games and software, digital humanities scholars explained why preserved copies are necessary for scholarship, teaching, and research. Proponents also pointed out that the opponents’ concerns about the risk posed by permitting increased remote access is grossly overstated; there has never been an example of data leakage in the history of Section 1201.
This fall, the register of copyrights will submit her recommendations to the librarian of Congress, who will then issue a final rule on the exemptions. The updated regulations will be in place for the next three years, when the rulemaking process begins again.
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ARL to Congress: No One Can Own the Law
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The US House of Representatives Judiciary Committee voted this month to advance the Protecting and Enhancing Public Access to Codes Act, or the Pro Codes Act (H.R. 1631), to the full House. The bill would extend copyright protection to codes (such as building codes) that are developed by standards development organizations (SDOs) and incorporated by reference into local, state, and federal laws, as long as the SDOs make the codes “available to the public free of charge online in a manner that does not substantially disrupt the ability of those organizations to earn revenue.”
During the markup, Rep. Zoe Lofgren (D-CA) entered into the record an opposition letter in which a coalition of libraries, civil society, disability rights groups, and others argued that providing free access to the law furthers the fundamental purpose of copyright. Rep. Lofgren also introduced dozens of amendments to stimulate debate and improve the bill. Unfortunately, the committee rejected all of Lofgren’s amendments except for one that would require the Government Accountability Office to study the effects of the bill.
The committee voted to advance the bill to the full House of Representatives. ARL will continue to advocate to protect access to information for the public. For more, see ARL’s analysis of the markup as reposted in Techdirt.
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CARL Responds to Opinion Piece on Copyright Reform with Letter to The Hill Times Editor, “The Facts about Education and Copyright”
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In response to misleading claims that educational copying harms Canadian creators, published in an opinion piece in The Hill Times by representatives of the Association of Canadian Publishers (ACP), CARL posted a letter to the editor titled “The Facts about Education and Copyright”; you can read the letter without a paywall on CARL’s website. In the letter, CARL pointed out that universities have shifted to licensed digital content in the past decades, and that in 2020–2021 Canadian university libraries reported spending $388 million on licensing resources under terms that enable a wide range of copyright-compliant uses. The letter called for any regulatory change that supports the independent publishing sector to be based on evidence that “bears up under scrutiny, respects Canadian jurisprudence, and demonstrably assists authors.”
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US Copyright Office Offers Copyright Owners and Publishers Option to Deposit in Electronic Form
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The solicitor general of the United States sent a letter this month to the Speaker of the US House of Representatives explaining that the Justice Department will not seek Supreme Court review of the DC Circuit’s decision in Valancourt Books v. Garland. Instead, the Copyright Office intends to change its implementation of Section 407 of the US Copyright Act. The office will offer copyright owners the option to provide deposits in electronic form. Additionally, the office will modify the language of its deposit-demand letters to explain that the deposit requirement applies only to persons who choose to retain the benefits of copyright protection. Further, the office will continue to provide recipients with information regarding the benefits of copyright protection and the Library of Congress’s desire to include the requested work in the national collection.
As the solicitor general explained, the case concerns a longstanding requirement under Section 407 of the US Copyright Act that an owner of copyright in a published work must deposit two copies of the work with the Library of Congress after publication. Section 407 also permits the Copyright Office to issue a written demand for the deposit if the copyright owner or publisher does not comply. The DC Circuit concluded in August 2023 that the mandatory deposit of physical copies of works under Section 407 is an unconstitutional government taking of the copyright owner’s property. Because copyright is granted automatically upon fixation of a work, the court reasoned, Valancourt received no benefit in exchange for the government’s taking of its property. Critically, the court did not assess the constitutionality of demanding electronic copies, so the holding relates solely to the office’s demand for physical copies of copyrighted works.
The Library Copyright Alliance filed a brief in support of the Copyright Office and the mandatory deposit requirement when the case was before the DC Circuit.
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Open Internet and Online Privacy
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Congress Proposes Excluding Library Data from New Federal Rules for Personal and Sensitive Data
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This month, Congress introduced the American Privacy Rights Act (APRA), a discussion draft of a bill that would impose comprehensive federal rules for businesses, common carriers, and nonprofit entities that collect and process data; the bill excludes government entities. The draft bill excludes data that may appear in library special collections, gift agreements, etc. from the bill’s requirements:
(v) information in the collection of a library, archive, or museum if the library, archive, or museum has—
(I) a collection that is open to the public or routinely made available to researchers who are not affiliated with the library, archive, or museum;
(II) a public service mission;
(III) trained staff or volunteers to provide professional services normally associated with libraries, archives, or museums; and
(IV) collections composed of lawfully acquired materials and all licensing conditions for such materials are met.
The ADPPA and APRA also explicitly do not preempt provisions of laws that address the confidentiality of library records.
During a hearing before the House Energy and Commerce Committee this month, witnesses largely spoke favorably about APRA, and some made suggestions for how the bill could be strengthened. Still, APRA’s passage is uncertain, in part because it is unclear whether provisions in other bills that purport to address online privacy for children and young adults would conflict with features of APRA.
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ARL and EDUCAUSE Welcome US Federal Communications Commission (FCC) Vote to Reinstate Net Neutrality
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The Federal Communications Commission (FCC) voted this month to restore net neutrality protections, and with them, a national standard for preserving internet openness.
The vote classified public broadband internet access service as a telecommunications service under Title II of the Communications Act, allowing the FCC to create and enforce clear rules for internet service providers (ISPs) that will prevent them from blocking access to lawful content and devices, slowing down data traffic, or creating pay-to-play internet fast lanes. The commission also retained its long-standing policy of excluding private end-user networks like libraries and universities from the definition of broadband internet access service.
ARL and EDUCAUSE thanked the FCC for restoring a national framework for preserving internet openness. As we wrote to the commission in December 2023, an open internet is critical for colleges, universities, and research libraries to best serve the vital public interests at the core of their missions.
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